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Blank v. State5/19/2000
Conclusion
The judgment of the superior court is REVERSED.
MANNHEIMER, Judge, dissenting.
I agree with my colleagues that the breath test result must be suppressed. The trooper who administered the test to Blank had probable cause to believe that Blank had committed two crimes: manslaughter and felony hit-and-run. The trooper also had probable cause to believe that the alcohol in Blank's breath (or, conversely, the absence of alcohol in her breath) would be evidence relevant to these crimes. But in Layland v. State, the Alaska Supreme Court ruled that the existence of probable cause does not authorize a search of a motorist's breath or blood unless the motorist is arrested. As Judge Stewart explains in the majority opinion, it appears that Layland is based on a misinterpretation of the United States Supreme Court's decision in Schmerber v. California. Even so, we are bound by Layland.
But though I agree that the breath test result must be suppressed, I disagree with my colleagues concerning the effect of this error on Blank's convictions. Blank was convicted of two crimes: manslaughter and felony hit-and-run (leaving the scene of an injury accident). Suppression of the breath test evidence requires reversal of Blank's manslaughter conviction, but it does not require reversal of Blank's hit-and-run conviction.
In arguing that Blank was guilty of manslaughter, the prosecutor relied heavily on the breath test result. He argued that the test result showed that Blank had been drinking more than the one beer she admitted. He also urged the jury to infer that Blank's consumption of alcohol had affected her concentration and attentiveness while driving - that it had been a factor in causing the accident.
But when the prosecutor argued that Blank was guilty of hit- and-run, he paid almost no attention to Blank's consumption of alcohol and her possible intoxication. The prosecutor did not argue that Blank was too drunk to understand that she had hit someone. Rather, the prosecutor argued that the circumstances of the collision and the actions Blank took following the collision clearly demonstrated that Blank was aware that she had struck someone.
The prosecutor pointed out that Blank's vehicle struck Pennye McDowell so hard that the impact cracked the windshield, broke off the side-view mirror, and smashed out the front passenger window. He reminded the jury that one of Blank's children testified that, a few moments after the collision, Blank asked, "Did I hit somebody?", and her daughter Tori replied that she thought they had hit someone.
But despite her daughter's answer, Blank drove away from the scene - and she drove away fast. The prosecutor asked the jury to remember the testimony given by a boy who was playing in a neighboring yard. The boy testified that he heard the collision and then, immediately afterward, he heard a woman (McDowell's friend) crying "Help, help!", and then he heard the sound of tires squealing. Blank accelerated away from the scene of the collision and (in the prosecutor's words) "made a bee-line ... to her house". She drove over ruts and boulders, wedging rocks in the undercarriage of her car. When she arrived, she put her car in the garage and closed the garage door so that the car could not be seen.
In short, the jury's decision to convict Blank of felony hit- and-run did not depend on a finding that Blank was intoxicated (or even that she had been drinking). The prosecutor argued that, intoxicated or not, Blank understood that she had struck someone. Her vehicle had suffered obvious damage, and her own daughter told her that she thought they had hit somebody. Despi
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